People v. Cunningham

• Decision Date: 24 April 2019
• Docket Number: Ind. No. 2828/13,2015–12069
• Citation: 98 N.Y.S.3d 611,171 A.D.3d 1207
• Parties: The PEOPLE, etc., Respondent, v. John CUNNINGHAM, Appellant.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 1207
98 N.Y.S.3d 611

The PEOPLE, etc., Respondent,
v.
John CUNNINGHAM, Appellant.

2015–12069
Ind. No. 2828/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 25, 2019
April 24, 2019

98 N.Y.S.3d 612

Paul Skip Laisure, New York, N.Y. (Lauren E. Jones of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, Ayelet Sela, and Sharon Y. Brodt of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

171 A.D.3d 1207

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Daniel Lewis, J.), rendered October 23, 2015, convicting him of burglary in the second degree, possession of burglar's tools, and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the Supreme Court committed reversible error when, in its charge on burglary in the second degree, it instructed the jury on the portion of Penal Law § 140.25 that imposes liability for "remain[ing] unlawfully" in a dwelling. The defendant argues that this was improper since the People's case rested solely on the theory that he had unlawfully entered into the dwelling (see People v. Gaines, 74 N.Y.2d 358, 547 N.Y.S.2d 620, 546 N.E.2d 913 ). The defendant's contention is unpreserved for appellate review (see CPL 470.05[2] ; People v. Mestres, 41 A.D.3d 618, 838 N.Y.S.2d 164 ). In any event, "[s]ince the evidence permitted

171 A.D.3d 1208

the jury to infer guilt under either theory, unlawful entry or unlawful remaining, the trial court properly charged the jury that it could determine guilt under either theory" ( People v. Lafond, 213 A.D.2d 678, 678, 624 N.Y.S.2d 951 ; see People v. Faber, 64 A.D.3d 788, 789, 883 N.Y.S.2d 300 ;

98 N.Y.S.3d 613

People v. Noniashvili, 285 A.D.2d 657, 728 N.Y.S.2d 392 ). Furthermore, the court's charge, taken as a whole, conveyed the correct standard to the jury (see People v. Umali, 10 N.Y.3d 417, 426–427, 859 N.Y.S.2d 104, 888 N.E.2d 1046 ).

The defendant's contention that the prosecutor made improper remarks during his opening statement and summation is largely unpreserved for appellate review (see CPL 470.05[2] ; People v. Giddens, 163 A.D.3d 990, 991, 81 N.Y.S.3d 515 ). In any event, we agree with the defendant that certain of the prosecutor's remarks were improper, including those which, among other things, denigrated the defense (s...